Kennedy's judicious image

ByCURTIS J. SITOMERDecember 31, 1987

NOBODY likes a smarty-pants - especially on the US Supreme Court. And that may be why Judge Anthony Kennedy will almost certainly be elevated to this august body sometime early next year and why Judge Robert Bork will have to be content to remain on the nation's most prestigious appellate court.

Legal gurus have insisted that the real reason Kennedy is acceptable, and Bork was not, is that the new nominee is a moderate, middle-of-the-road, mainstream conservative while Bork is a right-wing ideologue.

Maybe so. But behind all that - take my word for it - was the perception of all those women's groups and civil libertarians and eloquent-speaking constitutional scholars who opposed Bork that he was too smart for his own good.

Why else would he have written dozens of articles and delivered scores of speeches - many of them criticizing the Supreme Court not only for its decisions but also for how the justices arrived at them?

Pro-choicers rose in rebellion against Bork, claiming he would not only have invalidated the Roe v. Wade right-to-an-abortion ruling but also would have turned the clock back on a high court finding that struck down a Connecticut law limiting use of contraceptives.

Actually, there is no hard evidence that the former law professor would do either. Bork merely said that Roe was the outgrowth of fallacious judicial reasoning and that the Connecticut statute was ``nutty'' but constitutional.

But take Judge Kennedy. He doesn't take unnecessary risks with his judicial reputation and controls his public image. He hasn't told anybody how he would vote on abortion - or contraception. Unlike Bork, he's written no long treatises questioning the concept of ``privacy'' as an implied constitutional right.

Women's groups are not too thrilled over Kennedy's views on comparable worth and other gender-related issues. The current nominee, however, has not hinted (as Bork has) that the 14th Amendment's ``equal protection'' provision was written only for blacks and not women.

Again, there is every evidence that Bork would be as watchful of affronts on women's rights as Kennedy. But the latter hasn't waxed philosophical on the subject, diddled around with bizarre professorial speculations, and then put them down on paper.

Liberal court members - including Associate Justices William Brennan and Thurgood Marshall - probably might have had more fun with Borkian theories than they will with what figures to be Kennedy's studied reasoning. Justice Marshall, in particular, has taken to making intemperate remarks about judicial concepts he opposes. Wouldn't he have had a heyday with someone like Bork?

And Bork certainly would have made a worthy intellectual foe to fellow conservative Antonin Scalia. These two weighty scholars might have had a great time voting similarly but outreasoning each other.

But alas, it's really the Kennedys that the system is geared to. The reflectors. The balancers. Those who usually vote on the specific case or issue - but reserve judgment on the broader concepts.

Judge Kennedy will move the court to the right - but ever so slightly and gently. He's not likely to invoke sweeping ideas about the ``original intent'' of the Constitution's Founders or to dissect decisions in terms of whether the supreme law of the land spells out a right of privacy.

This will almost certainly be Ronald Reagan's last opportunity to change the direction of the high court, as he has long promised to do. If another vacancy occurs before the President's term ends, an opposition Senate will put off confirmation hearings until after the 1988 national elections.

Some are already declaring the Reagan judicial revolution a washout. These analysts are ahead of themselves. This chief executive appointed two high court justices - Sandra Day O'Connor and Scalia before Kennedy. And he has elevated William Rehnquist - perhaps the court's most consistent conservative - to Chief Justice.

The Reagan impact on the course of justice in America won't really be felt until well into the administration of a George Bush or Robert Dole or Mario Cuomo or whomever.

Meanwhile, the nine non-smarty-pants justices may at times tip their rulings left or right. But if history is any indication, their general course will be steady-as-you-go.